Harrison v. Whitely

• Decision Date: 06 May 1927
• Docket Number: (No. 309.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: HARRISON v. WHITELY, County Clerk, et al.
• Court: Texas Court of Appeals

299 S.W. 699

HARRISON v. WHITELY, County Clerk, et al.

(No. 309.)^*

Court of Civil Appeals of Texas. Eastland.

May 6, 1927.

Appellant's Motion for Rehearing Denied October 7, 1927.

Appeal from District Court, Dallas County.

Suit by Edward T. Harrison against D. C. Whitely, Clerk of the County Court at Law No. 1 of Dallas County, J. C. Crane, Sr., and another, for writs of mandamus, injunction, and prohibition. From a judgment sustaining defendant Crane's general demurrer to the petition, petitioner appeals. Appeal dismissed.

J. L. Goggans, R. W. Gray and B. O. Baker, all of Dallas, for appellant.

Wilson & Biggers, of Dallas, for appellees.

PANNILL, C. J.

At a former day of the last term the judgment of the trial court sustaining a demurrer to the petition of appellant, plaintiff in the court below, was reversed and the cause remanded. Appellee filed a motion for rehearing, in which for the first time the point was made that the district court was without jurisdiction to entertain the petition for a writ of mandamus because the amount in controversy was between the sums of $200 and $500, and the suit was exclusively within the jurisdiction of the county court. This contention was sustained. Appellant has filed a forceful motion, and the proceeding is again up for review. Appellant, Harrison, together with J. C. Crane, Jr., were defendants in a suit brought by the Guaranty Securities Company in the county court. Harrison impleaded J. C. Crane Sr., and sought a judgment over and against him. The citation to Crane, Sr., was served on the first day of the term to which the process was returnable and the suit continued to perfect service. There was a trial at the succeeding term and judgment in favor of plaintiff against the two original defendants and in favor of appellant, Harrison, over and against J. C. Crane, Jr., and J. C. Crane, Sr. An answer was filed by J. C. Crane, Sr., after the judgment was rendered and at the same term. Some 13 months later said Crane, Sr., filed a motion to set aside said judgment for want of service. This motion was sustained. No appeal was taken from the court's action in so doing. The original judgment was for the sum of $234. A written demand was made on the clerk for an execution which was refused because the judgment had been set aside. Appellant then brought this suit for mandamus in the Ninety-Fifth district court in which the county clerk and J. C. Crane, Sr., were defendants. The facts as briefly summarized above were pleaded in great detail. A mandamus was prayed for against the county clerk for the issuance of an execution, for an injunction as against J. C. Crane, Sr., restraining the further prosecution and trial of the cause. A restraining order was sought against the judge of the county court and a mandamus prayed for against him to prevent him from further trying the case and requiring him to set aside the order granting a new trial. A writ of prohibition was also prayed for requiring the judge of the county court and appellee Crane to proceed no further in said cause in the county court except to set aside the order granting Crane, Sr., a new trial. An answer was filed by Whitely separately, suggesting that the judgment had been set aside, leaving the county clerk without authority, but professing a willingness to obey the orders of the court, and an answer was also filed by all the defendants.

The conclusion has been reached that the question of jurisdiction depends upon whether appellant's suit was in effect one to enforce the collection of a judgment rendered in the county court of which that court had exclusive original jurisdiction, or whether it was merely a suit to require the performance by the county clerk of a ministerial duty. If the former, under the authorities, the district court would have no jurisdiction, but if the latter and unmixed with any attempt to have the validity of his judgment determined, the...